The Federal Activities Inventory Reform Act of 1998 (FAIR Act), Public Law 105-270, signed into law on October 19, 1998, directs Federal agencies to submit an annual inventory of commercial activities which are not inherently governmental, but which are being performed by Federal employees. The US Department of Education (ED) is providing the following information in accordance with the FAIR Act and guidance from the Office of Management and Budget (OMB).

Background

Below is a link to download the US Department of Education’s (ED) 2002 Activities Inventory. The inventory was prepared in accordance with the FAIR Act, OMB Circular A-76, its March 1996 Revised Supplemental Handbook, and other OMB guidance. This year's inventory includes the number of ED Full-time Equivalent (FTE) employees performing functions that could be considered commercial in nature as well as functions that are inherently governmental. After review by OMB, the Department is hereby making the inventory available to the public.

Several years ago, the Department undertook an aggressive effort to contract out its major activities. Contractors now perform the following activities:

Inventory Challenges and Appeals

Under Section 3 of the FAIR Act, ED’s decision to include or exclude a particular activity on or from the Commercial Activities Inventory is subject to administrative challenge and appeal by "interested parties." Section 3(b) of the FAIR Act defines an "interested party" as:

A private sector source that (A) is an actual or prospective offeror for any contract or other form of agreement to perform the activity; and (B) has a direct economic interest in performing the activity that would be adversely affected by a determination not to procure the performance of the activity from a private sector source.

A representative of any business or professional association that includes within its membership private sector sources referred to in 1. above.

An officer or employee of an organization within an executive agency that is an actual or prospective offeror to perform the activity.

The head of any labor organization referred to in section 7103(a) (4) of title 5, United States Code that includes within its membership officers or employees of an organization referred to in 3. above.

An interested party may submit an initial challenge to the inclusion or exclusion of an activity within 30 working days after publication of OMB's Federal Register notice stating that the inventory is available. The challenge must set forth the activity being challenged with as much specificity as possible, and the reasons for the interested party's belief that the particular activity should be reclassified as inherently governmental (and therefore be deleted from the inventory) or as commercial (and therefore be added to the inventory) in accordance with OFPP Policy Letter 92-1 on inherently governmental functions or as established by precedent (such as when other agencies have contracted for the activity or undergone competitions for this or similar activities).

The Department will review initial challenges. Written notification of ED’s decision will be transmitted to the interested party within 28 working days of receiving the challenge. The notification will include a discussion of the rationale for the decision and, if the decision is adverse, an explanation of the party's right to file an appeal.

Appeals of an adverse decision to an initial challenge must be transmitted to ED within 10 working days after receiving the written notification of the decision. The Department will decide the appeal and transmit to the interested party a written notification of the decision together with a discussion of the rationale for the decision within 10 working days of receipt of the appeal. ED will transmit to OMB and Congress a copy of any changes to the inventory that result from this process, make the changes available to the public and publish a notice of public availability in the Federal Register.

Submit Challenges and Appeals to:

Questions Regarding ED's 2002 Inventory

For further information regarding the inventory, the Department requests that questions or comments be submitted in writing. E-mail questions to Gary.Weaver@ed.gov or fax questions to (202) 205-0323, ATTN.: Gary Weaver. The Department has established an inventory hotline as well. The number is (202) 401-3848.

Links to FAIR Guidance

OMB FAIR Act Users Guide OMB developed this guide to assist the public in reviewing and understanding the commercial activities inventories developed by agencies under the FAIR Act. Includes the list of Activity/Function codes and explanations of Reason Codes.

FAIR Act of 1998 The Federal Activities Inventory Reform Act of 1998 (Public Law 105-270), provides a process for identifying the functions of the Federal Government that are not inherently governmental functions, and for other purposes.